NEW YORK CITY—Government lawyers in the criminal trial of former President Donald Trump have taken a carefully calculated approach, seeking to balance lengthy testimony from an admitted perjurer with voluminous phone, email, text, and audio records that they are betting a jury in a deep blue city will find objectively reliable, according to legal experts.
Throughout the trial, prosecutors have punctuated their questioning of witnesses with frequent requests to move an item into evidence and show it to the jury, and the judge has rarely said no.
Their painstaking use of records to construct a documentary history of an alleged coverup of a nondisclosure agreement payment—what the prosecution alleges amounts to election fraud—tacitly acknowledges that former Trump lawyer and “fixer” Michael Cohen is not a witness that most lawyers would normally want make the focus of their case, the experts say.
With his record of lying and financial fraud, Mr. Cohen presents as a problematic witness for the prosecution.
The prosecuting attorneys have gathered evidence from far and wide, according to Jeffrey Hooke, a professor at Carey Business School at Johns Hopkins University. They have rolled out an array of evidence that they hope will substantiate the core allegations: that President Trump knowingly miscategorized payments pursuant to a nondisclosure agreement as fees for legal services that Mr. Cohen rendered and that doing so with the November 2016 election looming amounts to electoral fraud.
The reliance on documents is more than an example of lawyers doing their homework, according to Harvey Kushner, chair of the criminal justice department at Long Island University.
It is part of a studied effort to allay any reservations that the jury might have about convicting President Trump on the basis of a convicted liar’s testimony and to parlay political sentiment and affiliation in a deep blue bastion into a victory for New York’s progressive establishment.
Mr. Kushner compared the current proceedings in lower Manhattan to trials in which lawyers put notorious mobsters and others with dubious credibility on the stand.
“They’re just throwing everything at the wall and hoping something sticks. The prosecutors are trying hard to get around the fact that Michael Cohen is a convicted felon, he has lied before,” Mr. Kushner told The Epoch Times.
Prosecutors’ Diligence
While legal commentators question the government’s position that a standard and wholly legal nondisclosure agreement (NDA) and the rolling-up of payments for the NDA into a legal bill could be said to constitute election fraud, few dispute the breadth of evidence presented in court.Alongside dozens of email, text, AT&T, and Verizon records, and recordings of parts of phone calls and podcasts played in court, jurors have heard custodians of business records testify at length about the veracity of their companies’ data and have heard forensic experts explain how metadata capture who initiated a call and who received it.
Those parts of the trial didn’t draw as much attention as the hours that former American Media CEO David Pecker; former adult performer Stephanie Clifford, known by her stage name, Stormy Daniels; or Mr. Cohen spent on the witness stand giving accounts of their roles in the case.
But prosecutors’ diligence is not in doubt. Jurors have heard lengthy testimony on the technical and clinical aspects of social media, banking, and telecommunications records from witnesses including a paralegal in the Manhattan district attorney’s office whose role was to review and store tweets and Truth Social posts, a computer forensics expert in the DA’s office, a former senior managing director at First Republic Bank, an accounts payable supervisor at The Trump Organization, a compliance analyst for AT&T, President Trump’s first executive assistant at the White House, and many others.
The direct examination has dwelled on the minutiae of such records, as prosecutors have built a detailed narrative of who called, texted, or emailed whom, at what time, in connection with negotiations of the terms of the NDA, efforts to convince Ms. Clifford to sign the NDA, her and her lawyer’s growing impatience with unmade payments, the process of initiating payments to Ms. Clifford and reimbursement to Mr. Cohen, her subsequent attempt to win release from the NDA, the interest of various editors and publishers in her alleged tryst with President Trump, and social media sniping about the matter.
In the minds of some experts, the strategy of the government lawyers is clear: They seek to preempt defense arguments that the star prosecution witness has so tarnished his own credibility that he is useless as a witness and the case must result in a mistrial or a verdict favorable to President Trump.
“I think the jury’s going to take whatever Michael Cohen says with a grain of salt, but they also have to acknowledge that there’s a lot of documentation that backs him up,” Jeffrey Hooke, who has studied many white-collar prosecutions, told The Epoch Times.
A History of Lies
Mr. Hooke acknowledged that some jurors may well be troubled by the fact that Mr. Cohen admitted to lying under oath during a February 2019 deposition before the House Permanent Select Committee on Intelligence and also perjured himself in statements to the House Committee on Oversight and Reform that same month.
Mr. Cohen has admitted many times on the stand that he made false statements to a bank as part of his application for a home equity line of credit and that he committed tax fraud, although he insists that the latter offense was minor and shouldn’t have resulted in a criminal conviction.
He has also admitted during testimony over the past week that he repeatedly lied about the nature of the payments he received in connection with the NDA, characterizing them as legal fees paid as part of a retainer rather than reimbursements for the money he himself paid for Ms. Clifford’s silence. He further admitted that not all the representations made in an effort to reduce his prison sentence were truthful.
Yet Mr. Cohen’s record may not sink the prosecution’s case.
“It weakens the case a little bit, but I don’t think it undermines it all,” Mr. Hooke said.
He said he believes that the defense may have made a mistake in drawing out its cross-examination of Mr. Cohen. Trump lawyer Todd Blanche has sought to sow doubt in jurors’ minds by presenting the witness with an array of inconsistencies and contradictions in his testimony, stressing Mr. Cohen’s seemingly irreconcilable statements about whether he violated tax laws, about the nature of a phone call to President Trump’s bodyguard, about when he learned of the unsealing of the indictment, and about his ability to recall details of specific phone calls out of many thousands he was on in a given year.
But in pressing Mr. Cohen on these and other points, the defense may have let a practiced liar dominate the proceedings to some extent. Mr. Blanche’s excitability during cross-examination on May 16, which drove prosecutors to object more than once—objections that Justice Merchan sustained—may be a sign of frustration with Mr. Cohen.
‘A Legal Tightrope’
The government lawyers have had no compunctions about drawing lengthy testimony from a witness whose lack of credibility has stoked concern. This is simply a reflection of the nature of criminal proceedings, according to Mark Graber, a professor at the University of Maryland Francis King Carey School of Law.“In a great many criminal cases, the only witnesses are criminals. So prosecutors routinely have to rely on witnesses whose records are not stainless,” Mr. Graber told The Epoch Times.
Eliminating liars from trials would mean doing away with witnesses altogether, he said.
“Juries know this. So the issue is who you believe. This is why the prosecution is making its best efforts to document or support everything Cohen says,” Mr. Graber said.
Michael Alcazar, a professor in the political science department at the City University of New York, said he agrees about the balancing act that government lawyers are attempting to perform.
“Cohen’s testimony is like walking a legal tightrope. His credibility teeters, and the outcome of the trial hangs on a delicate balance between the right to a fair trial and the pursuit of truth in the judicial process,” Mr. Alcazar told The Epoch Times.
“The criminal justice system allows for the possibility that a person can tell the truth even if they have lied in the past. It is up to the jury to weigh the credibility of the testimony presented.”
Some will wonder why the jury would even entertain the idea that Mr. Cohen can offer reliable testimony—this is the key to the government’s strategy, according to Mr. Kushner.
“There doesn’t seem to be any legal point you can wrap your hands around,“ he said. ”Where is the crime?”
Mr. Kushner compared the decision to put Mr. Cohen on the stand to government lawyers’ willingness to elicit testimony from Sammy “The Bull” Gravano in a mafia prosecution in March 1992.
The extensive reliance on business and technical records and testimony from reputable witnesses not known to have lied in the past may yet sway a jury in a city that voted for Joe Biden by an overwhelming margin in 2020, Mr. Kushner and others have said.
“Drawing the jury from New York is so prejudicial to the president’s case,“ he said. ”It’s highly political. I think they’re banking on the fact that jurors in New York are going to be biased [against President Trump].”
One holdout juror could prevent a victory by the prosecution. But it would likely be easier for jurors bent on a conviction to pressure a single outlier to come around to their point of view, so an acquittal may require at least three jurors sympathetic to President Trump’s point of view—which Mr. Kushner said he thinks isn’t likely.
“You couldn’t pick a better place to convict him than New York,” Mr. Kushner said.
District Attorney Alvin Bragg’s office didn’t reply to a request for comment.
